Saturday, April 17, 2010

Involuntary Mental Commitment Final Hearings

By John DiMotto
In Wisconsin, mental health law issues are addressed in Chapter 51. The legislative policy of the State is discussed in section 51.001. It is to provide for treatment as well as to protect personal liberties of all of the State's residents. Section 51.20 specifically sets forth both the substantive and procedural law that governs Involuntary Mental Commitments in the face of legislative policy.
An involuntary commitment can commence via an emergency detention or by original petition. In order to seek involuntary commitment the petitioner -- usually an attorney for the county -- must allege that the person in need is :
1) mentally ill;
2) the mental illness is treatable, and
3) the person is dangerous
The petition must set forth facts that establish probable cause as to these three elements.
The first hearing -- a probable cause hearing -- must be held within 72 hours of detention (exclusive of Saturdays, Sundays and Holidays). The first hearing is conducted before a probate court commissioner or judge. The county has the burden of proof to show probable cause. Probable cause is evidence that raises an honest belief in a reasonable person the the person in need is mentally ill, treatable and dangerous. This burden is usually met via the testimony of two witnesses. A witness to "dangerousness" and a medical or psychological expert witness to address the mental illness and treatability issues. If probable cause is established the matter is then set for a final hearing.
The final hearing must be held within 14 days of the date of detention if the person in need is detained. Detention is hospitalization not incarceration. If the person is not detained the final hearing must be held within 28 days of the probable cause hearing. The person in need is entitled to a jury trial. The jury trial must be demanded at least 48 hours before the final hearing. If the jury demand is made within 5 days of detention then the jury must be held within 14 days of detention. If the demand is outside of 5 days from detention, the jury must be held within 14 days of the demand. Most cases are court trials. Rarely are jury trials demanded. This is because attorneys for the person in need are usually of the opinion that a judge can distinguish merely bizarre conduct from the actions of a mentally ill dangerous person. In my three plus years doing probate cases, I have done two jury trials. In the first case the jury found that the person in need was not dangerous and involuntary commitment was denied and the case dismissed. In the second case, the jury found that the county produced evidence that was clear and convincing (the burden of proof for these cases) that the person in need was mentally ill, treatable and dangerous.
In Milwaukee County, the non jury final hearings are held on Friday mornings. A judge must preside over the final hearing. Right now, they are handled by reserve judges. This is because there are only two probate judges and they have a mixed civil/probate calendar. I am currently the Presiding Judge in the Probate subdivision of the Civil Division. Judge Mel Flanagan is the other probate judge. However, starting in June, we are each going to do one Friday a month and the other two Fridays will be done by Reserve Judges who presently do hearings every Friday. If a jury is demanded it is held on either a Monday or Wednesday and done by myself or Judge Flanagan.
These are very sad cases. The people who are subject to these petitions are oftentimes very, very mentally ill. They are very needy on many levels. All resources are directed to help them help themselves. The goal of the system is to provide services and release these persons back into the community as soon as possible.


  1. My son has an upcoming final hearing. Probably cause was established. Prior to the final hearing there is a pre-trial conference. What is done at that conference? Can I see the "evidence" that will be presented that my son is dangerous?

  2. Anonymous -- at the final pretrial the judge meets with the lawyers to make sure they have completed discovery and are ready to go to trial. Your son's lawyer will know what evidence is to be presented. Because of confidentiality issues it cannot be given to you by the court.

  3. After several illegal entanglements, my husband was diagnosed as psychopathic. He is untreatable and incurable. Can I have his parental rights terminated?